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James Allan, Garrick Professor of Law at the University of Queensland, has degrees from Queen’s University, the London School of Economics and the University of Hong Kong. His main areas of interest are legal and moral philosophy, constitutional law and bills of rights. He has published widely in these areas.
Allan describes himself as a conservative legal philosopher with libertarian instincts. He sees himself as a legal academic who puts a high value on free speech, individual enterprise, small government and democratic decision-making. He is also firmly opposed to affirmative action and detests “cancel culture”. These views rest primarily on what he describes as “Humean” foundations about human nature and the world in which we live. Hence, his jurisprudential work is concentrated on legal contributions to political objectives that flow from the form and process of law, rather than its specific contents. Here he confesses to uphold heterodox views when it comes to understanding how members of the judicial elite should interpret constitutions and the worth of human rights legislation.
This review appears in September’s Quadrant.
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The Age of Foolishness is a review of academic papers published in books and law journals that touch constitutional-related topics. They are reviewed and brought together in this book which, in the author’s words, amounts to a “doubter’s guide to constitutionalism”. It is certainly a book that doubts much of the present orthodoxy as regards constitutionalism in a modern democracy. Allan is determined to prevent a “lawyerly caste” assuming the role of arbiter with regards to values manifested in the law. This is achieved by minimising moral input at the point-of-application—to reduce the scope for judges’ subjective (and worse still, arbitrary) moral judgments. According to Allan, the proper task of judges is to manifest the will of the elected Parliament via the implementation of its rule-formulated decisions.
Part I, “Setting the Stage”, looks at competing efforts to ground the notion of rights and to give it a solid foundation. Allan opposes the idea of rights instruments that require a judicial decision on questions of morality. According to him, the judicial enforcement of abstract declarations of rights is inconsistent with the ability of ordinary citizens to influence decisions via the democratic process. After all, so the argument goes, even if a citizen finds the support of a large number of other citizens, thus managing to prevail in the democratic deliberative process, their law may still be challenged and struck down because their view of what a right might be does not accord with the views of the judges. In Allan’s opinion, abstract rights legislation basically transfers the decision-making from voters to judges on moral questions where there is no moral consensus or political agreement across the community.
The point here is to explain how the enforcement of abstract rights laws confers on an unelected judicial elite the power to veto law retrospectively on the basis of judgments of political morality. This involves a power that is more traditionally associated with the legislature, except that the unpredictability inherent in this exercise is exacerbated by its retrospective nature. Because rights laws are framed by way of broad principles of morality, instead of objectively formulated ones, they must cater for a vast range of situations to which they ought to be applied. These abstract provisions are open to interpretation, so it falls on the judicial elite to interpret these provisions so as to apply them to specific situations.
Typically, however, members of the superior court do not agree among themselves on the meaning and application of these abstract laws, and the decision ultimately falls to a simple majority of the bench. Controversy arises because, although virtually everyone would agree that some abstract declarations contain very good principles, there is far less agreement over how these principles should be applied in more practical terms. Because the application of abstract rights requires moral judgment, when unelected judges make decisions which are unpopular or controversial, they affront the principle of democratic majoritarian rule.
Allan is particularly critical of a lawyerly caste that “has too little love of democracy and too great love for social policy-making by unelected judges” and elites unaccountable to the voters. He proposes instead a procedural view of the Rule of Law where there is some room for disagreement about the rights and wrongs of enacted law. Allan favours a procedural approach to the rule of law that makes allowance for people naturally disagreeing about moral outcomes. Here too, he adds, there is a basic divide between procedural and substantive conceptions of the rule of law. On his view, “there will remain plenty of room for reasonable disagreement about the rights and wrongs of enacted laws”. However, according to him, “the procedural understanding does not try to cram all possible good things into, or under the rubric of, this notion of the Rule of Law”.
The realisation of the rule of law requires clear, stable and general rules of law. Characterised in this way, this ideal of legality cannot be developed if unelected judges use their position to satisfy political or moral views. Institutional support to the rule of law requires a non-partisan application of the law, which stands in opposition to extempore judicial rulings. For this reason, Allan contends that a bill of rights is not essential for the realisation of the rule of law, and quite to the contrary. In fact, such abstract declaration could compromise its realisation in the sense that the application of these vague provisions might become indistinguishable from the moral and political tendencies of individual judges. This may result in considerable usurpation of legislative functions by an unelected judiciary.
In Part II, “Doubting Orthodoxy’s Understanding of, and Commitment to, Democracy”, Allan reveals his commitment to democratic deliberation against what he describes as the “orthodox constitutional position of much of the lawyerly caste”. He favours democratic decision-making as the “least bad option”. He thinks elected representatives should decide on moral issues, and points out the long-term benefits of counting everyone as equal and voting for their representatives so they can decide on rights-related issues. Of course, he also acknowledges that parliamentary decisions are sometimes bad and immoral, just as the odd judicial decision under a bill of rights may also be bad and immoral. Ultimately, he is sceptical of allowing an infinitude of social issues that people argue about, and care deeply about, to be decided by a “committee of ex-lawyers”.
Allan reminds us that amongst members of the legal profession there is very little appreciation for democracy and, instead, “much love for unelected judges resolving a good many, for some most, social policy issues”. In countries such as Australia, Canada, the United States and the United Kingdom, a substantial proportion of the “lawyerly caste” has very little faith in the ability of ordinary citizens to form “proper” opinions about public policy in a manner that is acceptable to the ruling classes. These elitists are especially attracted to judicial enforcement of abstract declarations of right partly because it shifts power to members of their own social class, or those whose educational attainments, social habits and political morals are thought by them more likely to be “better”.
According to Allan, “there is a tendency amongst many judges, lawyers, and legal academics to downplay the merits of majoritarian democracy in favour of what they would see as law and the legal resolution of social policy disagreements”. This “lawyerly caste” apparently believes that “democracy is not up to the job in today’s world and would be outperformed by a more elitist, more aristocratic, more expert driven system”. Some of these elites may even characterise a proportion of the voters as “deplorable” and “unworthy of consideration”.
Part III, “Constitutionalism in the Democratic World”, turns to Allan’s doubts about aspects of “constitutional orthodoxy”. He expresses his preference for originalism and against the “living constitution” method of constitutional interpretation. The great divide in constitutional interpretation is between “original meaning” (whether derived from the framers’ intent or not) and “living constitution”, which assumes the existence of a body of law that grows and changes from time to time. While originalists like Allan recognise the need to know the constitutional drafters’ intent and context, advocates of a “living constitution” see written constitutions as non-fixed documents that can be evolved over time according to the whims of the judicial elite.
Allan explains that “opting for constitutionalism is opting for rigidity and comparative certainty over flexibility; for security over potential rights-infringing short-term considerations of collective welfare at the expense of the liberties of individuals and minorities”. This observation leads him to discuss whether constitutionalism requires a constitutionally entrenched bill of rights. He argues that written constitutions do not have to include these abstract declarations and that superior court decisions are “brutally majoritarian” in that five votes beat four no matter the quality of the reasoning.
In Part IV, “And Lastly on to Constitutional Interpretation”, Allan comments that the core attraction to constitutionalism revolves around achieving predictability. To make sure that “locked-in outcomes” take place, written rules must convey fixed meanings. Constitutionalism collapses if decision-making becomes no more than “judicial politics”. It is hard to ignore the irony of a decision-making process that merely reduces the size of the franchise to the number of judges on the superior court bench.
Allan then addresses the effectiveness of human rights declarations in curbing governmental power. Governments that ignore the rule of law are prepared to use naked power even to override basic human rights. The impressive rights legislation of unhappy countries such as Cuba, Sudan and Venezuela have provided little barrier against gross human-rights violations. However, as Allan points out:
many assume that nine judges could stop Mugabe—that the brutal Mugabe legislature will stop because a half-dozen ex-lawyer judges tells it to (remember, top courts are the most procedurally majoritarian institutions going so it would only have to be a fair majority of those judges) … If a legislature really has run wild in some horrific way then no handful of judges will stop it. They will be replaced or killed.
Allan also explains that opting for written constitutions is an option for more certainty and security over future flexibility and free scope for action. In this context, he explains the substantial difference between rights-related judicial review and federalism-related judicial review. According to him, “rights-related constitutional judicial review deals directly with what are often the most important and controversial issues of personal and political morality, something that cannot remotely as frequently be claimed as regards non-rights related, federalism constitutional review”.
The aim of federalism-related review is to have an impartial or disinterested umpire ruling on constitutionally prescribed heads-of-power disputes. Judges are simply doing their jobs when they are choosing between which of two democratically elected legislatures can legislate on a particular subject-matter. In this context, writes Allan, “the unelected judges act as umpires, choosing between two democratically elected decision-makers. In this type of judicial review, then, the unelected judges cannot take anything off the table as far as what majoritarian politics can enact. They merely distribute specific legislative endeavours between two tables.” His basic claim, then, is that:
heads-of-powers judicial review is qualitatively different from rights-related judicial review. The former deals in deciding which of two democratic bodies will decide some issue. The latter deals in deciding whether any democratic body will be allowed to do so. Add to that qualitative difference the dearth of any plausible alternative that will neither be any more democratic than the judges or that will not involve handing the power to a legislature or elected body with an interest in the dispute (to say nothing of having virtually no chance of coming to pass).
I would add that the enhancement of democracy via federalism arises also from citizens receiving multiple points of access to democratic deliberation, and through greater choice provided. Of course, democracy may be centralised or decentralised, but the latter allows a closer approach to the democratic ideal of respecting the will of the majority. Because laws which are valid for the whole national territory may come into conflict with the will of a majority living on a partial territory, to enhance democracy it might be beneficial that some laws be valid only for specific parts of the national territory and be created only by the majority of voters living in these particular territories.
Accordingly, federalism may enhance democracy by bringing power closer to ordinary citizens, thus allowing them to have a greater say in local decisions that more directly affect them. With a bill of rights, however, the last-word power would rest not with the voters but with an unelected judicial elite.
Allan is correct to remind us that constitutionally entrenched bills of rights hand too much power to unelected judges. However, he goes even further in order to explain that this assumption would be valid even for statutory bills of rights which allow judges to depart from the legislative intent. And no other provision in a statutory bill of rights is more potent than the “reading down provisions”, which afford judges the power to claim a provision which says what no lawmakers ever thought it said or intended it to say but only what a majority of judges assert it should say. A reading-down provision is almost as potent as an invalidating power as “it gives scope to judges to create new affirmative regulations … [and] to redraft and rewrite legislation by … ignoring clear intention, trumping otherwise plain meaning, and not requiring the least ambiguity before doing so”:
Once engaged in that redrafting or refashioning task the legislation under consideration is not in any straightforward sense being interpreted. It is being rewritten. The most that can be said is that the reading down provision has itself been interpreted, and it has been interpreted as granting judges a licence to rewrite (short of some indeterminate point termed “vandalism”) all other legislation.
Allan observes that today’s constitutional orthodoxy amounts to a rejection of what is sometimes unkindly described as “ancestor worship”, the preference for taking into account the intention of “the long-dead constitutional makers”. Instead, he says the prevailing preference is for upholding the beliefs, sentiments, judgments and policy preferences of a handful of top judges. Allan prefers to be locked in by the preference of constitutional makers than by the druthers of today’s top judges. He reminds us that if we do not like what the constitution makers gave us, then we can amend it openly and in accordance with the amending formula.
Originalists like Allan believe that meaning is locked in at the time of enactment or promulgation. This meaning must be fixed and “not change with changing social values, or with the shifting view of the point-of-application interpreter, or due to newly perceived moral truths by judges or legal academics”. And here readers notice valuable legitimacy arguments in favour of originalism: “if we give authoritative lawmaking power to a certain group of people—if they are the legitimate lawmakers—then it is their intentions that [should] matter”.
Allan notes that judges are often perceived “as a sort of modern day aristocracy there to rein in the worst instincts of the elected branches”. For him, “there is too much whiff of elitism piled on aristocracy about such arrangements”. Sure, originalism presupposes being locked in by the intentions of long-dead lawmakers. But as Allan explains, “living constitutionalism” actually involves being locked in by the moral judgments of unelected judges. He concludes: “Non-originalist judges have effected a small [undemocratic] revolution by not being faithful to the intended meaning of the written constitution”.
This outstanding book is an outsider’s take on much of current constitutional orthodoxy in the common-law democratic world. It is written by a legal philosopher who is unafraid of expressing his defence of democracy and a method of constitutional interpretation that favours this democratic approach. It was a real pleasure to read this book, which I am pleased to recommend without reservation.
The Age of Foolishness: A Doubter’s Guide to Constitutionalism in a Modern Democracy
by James Allan
Academic Press, 2022, 213 pages, US$49.95
Augusto Zimmermann is Professor and Head of Law at Sheridan Institute of Higher Education in Perth
I have much to agree with as to James Allan’s position as it is set out in this review. However, in the past I have disagreed with his style of originalism of seeking to determine what it was that the legislature intended as opposed to what the actual words meant at the time. The latter is the “‘textualism” style that Antonin Scalia preferred and which was the position of Lord Halsbury LC in Hilder v Dexter, [1902] AC 474, 477–8 when he said;
“My Lords, I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed.”
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As to Bills of Rights, I look with scorn on those illusory statutory instruments (as opposed to the kind which is embedded in a constitution as in the U.S.) which appear to offer so much but which can be set aside as soon as a parliament decides it doesn’t want to accept a constraint on its power to legislate.
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As to our Australian Constitution I believe that it is statute law and must be interpreted as such as stated in Potter v. Minahan [1908]:
“’in the last degree (it is) improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”
Toohey J. in a speech delivered in Darwin in October 1992, accepted this kind of reasoning as applying to the Australian Constitution: J Toohey, ‘A Government of Laws, and Not of Men’ (1993) 4 PLR 158, 170 (Public Law Review) by saying:
“Where the people of Australia, in adopting a constitution, conferred power [on the] Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties – a presumption only rebuttable by express authorisation in the constitutional document.”
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The proceedings of the Australasian Federation Conference Tuesday, 8th. February, 1898 starting at page 688 support the view of Toohey J. At that conference it was debated whether to include in the Constitution a protection against laws that would “deprive citizens of life, liberty, or property without due process of law”. Mr. Kingston and Sir John Forrest spoke against the proposition on the basis that it was unnecessary. The amendment was not carried, Sir John Forrest had suggested in the debate that even if such a bill was passed by Parliament that Royal Assent would be refused.
I believe therefore, that our Australian Constitution does not give Parliament the power to abrogate “fundamental common law liberties”. We have in that effect our own bill of rights.
I have no great beef with the idea that judges in interpreting legislation should follow a “literal” or better still, to use the phrase from the post of @melb a “textural” interpretation. What I tire of is this oft repeated adjective of judges, as “unelected”. No judge in Australia gets to sit on a court without appointment by the government of the day. The courts in Australia have become the product of politics. They are every bit the product of democratic process, the trouble is democracy has its own flaws. Make no mistake the flaws which were revealed in the Victorian Supreme Court during Pell’s appeal were the product of political appointment by the government of the day. Arguing that judges are unelected is merely an attempt to attack their legitimacy. An argument that an institutional figure is unelected should start at the Queen, include the prime minister, and every minister in government, and in fact every position in government and the public service. They are all “unelected” in those positions. The problem with attempting to weaken the authority of the courts is that that power which resides in the judiciary flows not to the legislature which is directly elected, but to the executive. I have not read Allan’s book, but often read his articles in the mainstream media. His beef, like many is that courts interpret the laws of day contrary to their own preferred interpretation and often following a philosophical agenda at odds with his own. That will always happen, but the reality for everyone is that the only protection from arbitrary state power is the courts. I would rather a powerful judiciary even an elitist one, than a more powerful executive.
By the way @melb, while the common law is a wonderful inheritance which all Australians should treasure, the fact is that Parliaments throughout this contrary regularly abrogate so called fundamental common law liberties. No better example of this are the various state evidence acts throughout this country which prohibit the admission in criminal trials of highly probitive and relevant evidence merely to pander to the politics of the day.
should read “Parliaments through out this country…”
Occidental: where you say “Parliaments throughout this country regularly abrogate so called fundamental common law liberties”, you are correct. The question is though whether such abrogations are ultra vires. Someone with more money than I have could test that but having regard to our High Court and its recent finding that “absolutely” does not mean “absolutely” I don’t like the chances of it succeeding. I also should mention that Justice Gaudron in Kruger v The Commonwealth (1997) appeared to find that even genocide could be lawfully legislated under our Constitution.
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I too would prefer a powerful judiciary to a more powerful executive.
Occidental:”even an elitist one”
While agreeing that a judiciary must never to be in thrall to the executive (a defining feature of the rule of every despot), what does ‘elitist’ mean?
Not sure that anyone has ever improved on Sir Owen Dixon: “There is no safer guide to judicial decisions in great conflicts than a strict and complete legalism.”
Melb: ““Parliaments throughout this country regularly abrogate so called fundamental common law liberties”, you are correct. The question is though whether such abrogations are ultra vires.”
Are you suggesting that that the High Court should declare that some “common law liberty” (presumably one that you approve of) should be miraculously immune from modification by the legislature? On what basis? Would that not be judicial law-making of the most blatant kind?.
Melb, to be clear I do take on board your argument that the Constitution should not be taken to have abrogated existing rights without express words or necessary intendment. But how do you apply that principle to a Constitution? You are opening the door to what you presumably don’t like, judicial lawmaking in support of supposed fundamental principle. That is surely the central criticism of “judicial activism”.
Occidental,
When you say that there is no better example of the abrogation of fundamental common law liberties than the legislative prohibition on the admission into evidence of highly probative material in criminal trials, such prohibition being merely a pandering to the politics of the day, are you referring to the prohibition on an accused admitting into evidence counselling or other records of an alleged victim of sexual assault which would establish or tend to establish that the alleged victim’s evidence is false ? If so, I heartily agree and think it is worthwhile to say so plainly. Such laws are a fraud’s charter as well as based on an assumption of guilt before conviction. Many alleged victims claim compensation and it is very beneficial to the fraudster and exaggerator to keep his records secret to prevent discovery of his fraud or exaggerations, a position that is simply not permitted to occur in other claims of physical or mental injury because insurers would not put up with it. That public or institutional funds are defrauded is, of course, of lesser moment than the loss of an accused’s presumption of innocence.
Sindri; thank you for your comments. Firstly, I am claiming that “fundamental” common law liberties are protected, not just any common law liberties. Secondly I am not talking about lawmaking as perhaps some would see Mabo but about whether a law should be struck down because it abrogates a fundamental liberty or right in the way that the laws against political communication were disallowed.
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I gave two examples above. One concerned laws that would “deprive citizens of life, liberty, or property without due process of law”. The other was concerning the opinion of Justice Gaudron in Kruger v The Commonwealth (1997) where she appeared to find that even genocide could be lawfully legislated under our Constitution.
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A third example would be as where the House of Lords in Oppenheimer v Cattermole [1976] AC 249 found with respect to an abominable Nazi law that; “…… a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”.
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I can’t imagine our High Court would lightly determine what was “fundamental” but if they did and then disallowed a law the proper process would be for the government, if it wished to persist, to take the issue to the people in the form of an amendment to the Constitution.
Melb, understood, but when you say “I can’t imagine our High Court would lightly determine what was “fundamental””, it would depend on the composition of the High Court at the time. A soi-disant “progressive” bench might see all sorts of supposed fundamental common law rights that needed to be protected. They would not even be under the discipline of interpreting a written bill of rights.
Amending the Constitution is a theoretical rather than a practical fallback. If it were that simple, the debates that rage in the US about judicial activism on particular issues would always be solved by the appropriate constitutional amendment.
The idea of the High Court entrenching some supposed fundamental common-law rights has quite a few issues, it seems to me.
And PS: striking down laws that “deprive citizens of life, liberty, or property without due process of law”. Just imagine what a “liberal” bench would make of that! All sorts of Parliament’s enactments might be struck down; it sounds to me a lot like what the US Supreme Court has made of the “due process” clause.
It may be a perfectly good thing; I’m merely pointing out the consequences.
Sindri; thanks for pointing out the consequences. It becomes a question of whether the sovereignty of the people is paramount over the sovereignty of the Parliament which is supposed to represent the people.
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The test of whether the Parliament was actually representing the people would be tested by the Constitution amendment process. I can’t see anything impractical about referring a controversial question to the people in that way. I think it would enhance our democracy.
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Remember that this is in a context where neither the Australian people, nor the Constitution statute by its text, have granted Parliament the power to abrogate fundamental rights.
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The end result would be that Parliament would be forced to consider fundamental rights before abrogating them.
This whole article is built on the premise “judges v the people”. But in what western european democracy, including the former British colonies, has a judiciary been accused of being contrary to the publics or voters interests? This argument is always proffered as a reason to emasculate or restrict judicial independence. The question that people should consider is -“who do you fear most, the judiciary or the government”. Notwithstanding the multitude of attacks made on court decisions, most people fear government more than courts. By government I mean the ATO, Border Protection, Police Force, Health ministers, traffic cameras or the local dog catcher. Courts only exercise authority when a case comes before it. Government regulates everything in our lives, all the time, and enforces its fiat, through fines penalties or imprisonment, and the only protection the individual has is the courts, as imperfect as they are. If “judicial activism” is the price we must pay to have a strong independant judiciary then I will gladly pay it. Remember that “judicial activism” was what Denning was accused of in the High Trees case, but now its the common law.
And God can only help his sheep ,if the Judgement wig is only made of horse hair!
Occidental; I guess you have just summed up why the hairs on the back of my neck stand up whenever I am confronted by any kind of authority and why therefore I think as I do.
Occidental: “If “judicial activism” is the price we must pay to have a strong independant judiciary”. You are putting up a straw man. Judicial activism isn’t a necessary price for a strong independent judiciary. Judicial activism is a misapprehension, with consequent misbehaviour, of judges of the scope of their power to develop the law. Judicial independence is not whimsical irresponsibility. Judicial independence entails responsibility to experience and tradition, not to rationalist adventurism. Judges are appointed to sustain the law, not to instigate it.
As for your innuendo that ‘judges are elected’: you misapprehend the notion of election.
As for your idea that judicial activism protects the people from the executive: no, ordinary judicial responsibility is all the judges can do to protect the people from the executive. Judicial activism takes from the people their right to entrust their legislative power solely to their elected Parliament.
@searcher, I meant by the phrase “if judicial activism is the price we must pay…”, that it was a small price to pay, to maintain a bulwark against executive power. Whether it exists or not is a matter of perception. Judges are not “appointed to maintain the law”, but to apply it to matters of contention brought before them, nothing more. But in doing so, the judicial process necessarily results in a type of legal evolution. As I alluded to in reference to Dennings decision in High Trees, if that decision had been handed down 40 years earlier, the concept it embodied would have been rejected. That it was accepted, demonstrated that its time had arrived.
Finally I never for one moment intended to convey or imply that judges are elected, quite the opposite. Their appointment is nonetheless the product, a derivative product, of the democratic process.
I couldn’t agree more that even elite judges leave us in safer hands than an unduly empowered executive. But instead of politicians appointing their mates how about elections? Not by the public, who truly wouldn’t have a clue, but by a college of practising barristers and those solicitors who regularly do court appearance work. Not by academics, because brilliantly useful as are much of their writings, they lack practical experience.